Congress and the Administration Agree: the Government Can Indefinitely Detain US Citizens

I’ve got a long post mostly written on the debate between two awful positions on the detainee provisions in the Defense Authorization.

But let me make something clear. Both sides have already bought off on one principle: that the Administration can indefinitely detain US citizens.

Dianne Feinstein made this clear in her comments yesterday in the Senate (in which she was reading from a letter SJC and SSCI Democrats wrote).

Section 1031 needs to be reviewed to consider whether it is consistent with the September 18, 2001, authorization for use of military force, especially because it would authorize the indefinite detention of American citizens without charge or trial …..

And yet while in the rest of her speech, DiFi laid out problems she had with sections 1032 (mandating military detention in most cases), 1033 (requiring certification before DOD transfers detainees to a third country), and 1035 (giving DOD precedence in detainee decisions), she made not a peep objecting to (as opposed to raising cautions about) this ability to indefinitely detain American citizens.

In response to DiFi’s speech and the Administration’s veto threat, Carl Levin revealed that the Administration’s complaints about the language authorizing military detention don’t stem from any squeamishness about indefinitely detaining Americans. Indeed, as Levin made clear, the Administration asked that limitations on applying the section to Americans be taken out of the bill.

The committee accepted all of the Administration’s proposed changes to section 1031.  As the Administration has acknowledged, the provision does nothing more than codify existing law.  Indeed, as revised pursuant to Administration recommendations, the provision expressly “affirms” an authority that already exists.  The Supreme Court held in the Hamdi case that existing law authorizes the detention of American citizens under the law of war in the limited circumstances spelled out here, so this is nothing new.

The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.”  The Administration asked that this language be removed from the bill. [my emphasis]

And given that SASC already voted to support this section by significant margins, it appears clear it has plenty of support.

So make no mistake. As I’ll show in my longer post, there are clear differences between the two sides (though I find both sides problematic). But whether or not the government can indefinitely detain Americans is not one of them.

Update: I took out “militarily,” as 1032 exempts automatic military detention for US citizens.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

14 replies
  1. emptywheel says:

    @MaryCh: In his speech Levin pretty much said, “well, we have habeas corpus!”

    But the problem is, Latif effectively guts habeas corpus. It says you can invent an intelligence report based on gossip or paid bounty hunting and use it to indefinitely detain someone, with no court review.

  2. MadDog says:

    If Levin had any cojones, he’d have named names of those Administration officials. As it is, we’ll have to presume that Obama himself buys into indefinite detention of US citizens without trial just as he has bought into the assassination of US citizens without due process.

    Which means we all can keep nice and warm this winter burning copies of the now defunct Constitution. Probably gonna be all heat and no light.

  3. Jeff Kaye says:

    @MadDog: Of course Obama buys into this!

    I look forward to your longer article, EW. This is THE most important but generally unanalysed issue out there right now. If only 2% of the space provided to the whole OWS movement were spent on making the importance of this known to the populace as a whole, it would really be something.

  4. What Constitution? says:

    On the plus side, it’s pretty clear that some of the folks most in need of indefinite detention are US citizens — Dick Cheney and Shrub Bush come immediately to mind. If the President can have this power, let’s elect someone who will use it on those who ordered, defended and implemented the torture regime itself.

    A couple of well-placed indefinite detentions and my guess is somebody might think twice before committing murder or violating international law. Maybe?

  5. earlofhuntingdon says:

    It’s not like the largely privatized intel industry has an incentive to lie or a long history of lying. Not. The history of their post-WWII actions is a cornucopia of lies. They lied about toppling, Mussadegh, Arbenz, and Sukarno. They lied about decades of attempts to assassinate Castro. They lied about their actions in Guatemala, Honduras, Nicaragua, Colombia, Ecuador, Peru, Chile, Bolivia, Brazil, and Argentina. The list reads like the front pages of the NYT for the past sixty years.

    They lie to enlarge their profits and the stream of business flowing from increasing the extent to which both parties have privatized intel and field ops. They lie to cover up their “oops” and their illegal and legal acts. They lie about their budgets. They have enormous incentives to lie. The FBI has nearly as many reasons as the intel industry to do the same.

    If no one at the sharp end of their lies can demand that they be tested in open court, then a Gresham’s law of will ensure that they lie more often and about more important things. Instead of only suspected “terrorists” being threatened with spending the rest of their lives in Gitmo, we can all be threatened with that end.

    How pathetic that Ms. Feinstein, spouse of a billionaire defense contractor and a purported Democrat, should lead the Democrats in continuing to dismantle the Constitution. Instead of Nixon going to China, we have a Democratic president-constitutional lawyer and his party leadership undoing the Bill of Rights. This will not end happily for anyone.

  6. earlofhuntingdon says:

    @What Constitution?: Hardly. It will allow the government to detain anyone indefinitely. Targets might include today’s Sam Giancana or Jamie Dimon or an actual terrorist. They will certainly include innocents who disrupt the political and financial well-being of their betters.

  7. Ken Muldrew says:

    “No freeman shall be arrested or imprisoned or deprived of his freehold or outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land.”

    Freedom was that.

  8. What Constitution says:

    @ Earlofhuntington: Your observations are absolutely correct and the concept of indefinite detention is reprehensible. Perhaps I was once again too elliptical, but I was trying to invoke the “angle” of suggesting that one reason not to enact monarchical and unanswerable powers is that they might not always be used as you had intended if you’re only dependent upon the subjective whims of those given the power. It would be poetic justice, in my book, for Cheney to be locked up by the very unconstitutional power Cheney sought to create — and if the Cheneys of this world stopped to ponder that possibility, we could only hope they might think better of abandoning the constitutional framework of checks and balances…. It’s rather like Sir Thomas More asserting “I would give the Devil himself the benefit of Law, if only for my own safety’s sake”; the people so comfortable with placing the authority indefinitely to detain a US citizen out of reach of the Constitution seem quite confident that this could never come back to bite them, and maybe they shouldn’t be encouraged to believe that?

  9. greenharper says:


    ‘Indefinite detention’ is no more than the horrific old ‘lock ’em up and throw away the key.’

    Even W. Bush, Cheney, Rice, Yoo, and probably thousands of banksters, mortgagesters, and their ilk deserve indictment by a grand jury; a phone call; to know the charges against them; to be tried by a jury of their peers; to confront the witnesses against them; the effective assistance of counsel; rights of appeal; sentences handed down by a judge in accord with the applicable law; and so forth.

    Infringing anyone’s rights destroys the rights of us all.

  10. Pyre says:

    @greenharper: “Infringing anyone’s rights destroys the rights of us all.”

    “He that would make his own liberty secure must guard even his enemy from oppression, for if he violates this duty, he establishes a precedent that will reach to himself.” — Thomas Paine

    But “What Constitution”‘s proposal was to demonstrate that very point to the people who introduced “indefinite detention” — by indefinitely detaining them, thus letting that precedent “reach” to themselves.

    The subsequent outcry from the Right should at least motivate a repeal of the indefinite-detention rule.

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